Criminal law

Sexual touching or disproportionate blowing?


Unless you’re a big fan of the global sport of soccer, or as we call it here in Australia, soccer, you’ll know that Spain’s 1:0 victory over England in the FIFA Women’s World Cup Final was an incredible win. marred by controversy After the president of the Royal Spanish Football Federation, Luis Rubiales, grabbed superstar Jennifer Hermoso and kissed her on the lips at the award ceremony that followed the mega event, the world watched with open jaws.

#MeToo moment in Spain

Social media activity quickly increased in the wake of the incident, dubbing it the “#Metoo moment” in Spain – and the battle lines were drawn.

Almost everyone, from football fans to politicians to social media buffs, seemed to have something to say about the incident, with some viewing it as an arrogant abuse of power, and even amounting to what would be known in the world. New South Wales as a criminal offense of sexual touchingand others as nothing more than a reckless and sudden act exaggerated in light of its context.

Various interpretations

In the days following the incident, Ms Hermoso reported via social media that the kiss was something she “didn’t expect” and “didn’t like”. In other words, it was not consensual under the law.

Rubiales responded, blasting the collective criticism leveled at him on the grounds that the kiss was not only consensual, but initiated by Ms. Hermosos. He referred to the kiss as “beek”

Since then, Ms Hermoso and 23 of her teammates have gone on strike, refusing to play any more matches until “leadership changes” occur, and coaches across Spain have quit to support a tournament-winning team.

Here come the lawyers

The Spanish Footballers’ Association Professional Footballers (FUTPRO) defended Luis Rubiales, speaking of the “unfair” and “pseudo-feminist” campaigns.

The federation released a number of photos in an apparent attempt to establish Ms. Hermoso’s approval of this behavior, and threatened to kill her. Defamation actions against Hermoso for lying and thus defaming the president of football.

It is not yet clear what exactly this legal action is. But the fuss does not subside.

Statement issued by the complainant

Mrs. Hermoso now has it issued a statement So much so that she felt pressured to support or justify Rubiales, but she chose not to.

I felt vulnerable and victim of aggression, an act reckless, sexist, out of place and without any kind of consent on my part. In short, I was not respected.she added.

“As world champions we don’t deserve a culture of manipulation, hostility and control. These types of incidents add to the long list of situations that we players have (tolerated) over the past few years, for what happened, for what I’ve been through, this is just a drop in a glass full. And just what the whole world was able to see.Such actions have been part of everyday life in our national team for many years.

World Federation step down football president

For its part, FIFA, the world governing body of football, took the decision to suspend Rubiales after he refused to resign.

The ban is initially for three months and applies to “all football-related activities”, while FIFA conducts its own investigations.

FIFA confirmed that it had initiated these investigations aimed at determining whether or not he had breached the “fundamental rules of appropriate behaviour” in the game.

More allegations of Rubiales’ “inappropriate” behavior towards women are also now beginning to circulate, including footage of him “grabbing his penis” at the Sydney Stadium in Australia on August 20 this year.

Public apology

The pressure prompted Rubiales to apologize publicly, saying:

“There is also something that I regret, something that happened between me and one of the players, where I enjoy a wonderful relationship like the ones I have with other players. There is no doubt that I made a mistake and I have to admit it.”

Courts can be called

In this case, FIFA would conduct its own investigation, and there is speculation that if his actions – and those of Spain’s football regulator, FUTPRO – are unacceptable to either party, the saga could be left to play out in the courts.

The president of the Spanish Football Federation, Miguel Angel Galan, is also said to have done so File a complaint With the Madrid Public Prosecutor’s Office and the State Prosecutor’s Office, the allegation that Rubiales’ actions towards Ms. Hermoso constitute The crime of sexual assault Under the broad definition of crime in the state.

There is currently no indication that Mr. Rubiales will be charged with a criminal offence.

But what if the act happened here in New South Wales?

Can the behavior amount to sexual touching?

In our state, Mr. Rubiales’ actions probably reach a level The offense of sexual touching under Section 61KC of the Crimes Act 1900 (New South Wales), which carries a maximum penalty of five years’ imprisonment.

Potential areas of contention will be whether the prosecution can prove beyond reasonable doubt that:

  1. The behavior was not consensual, and
  2. The behavior was sexual.

Footage of the incident as well as the testimony of Ms. Hermosa and Mr. Rubiales will be crucial in determining the first question.

In determining the second The law states that “sexual touching” is the place Touches another person without their consent:

  • any part of the body or any other object, or
  • through anything, including anything worn by the person touching or the person being touched,

Where a reasonable person considers touch to be sexual.

Things to consider when determining whether a reasonable person considers touching to be sexual include:

  • Whether the area of ​​the body being touched or touched is the person’s genital area, anal area, or (in the case of a female, transgender, or intersex person who identifies as female) the person’s breasts, whether or not the breasts are sexually developed, or
  • Whether the person touching is doing so for the purpose of obtaining sexual arousal or sexual gratification, or
  • Whether any other aspect of touch (including the circumstances in which it takes place) renders it sexual.

So, under NSW law, and provided the prosecution can prove absence of consent, the questions to ask are whether Mr Rubiales engaged in his conduct “for the purpose of obtaining sexual arousal or sexual gratification” and whether any other aspects of the behavior—including the circumstances—would lead to it being classified as sexual.

Given the high level of evidence provided by the prosecution, it can be argued that it would be difficult for the plaintiffs to prove that the conduct was sexual given its nature and the context in which it occurred.

However, plaintiffs may be able to prove this The crime of “common assault” This does not require proof that the grabbing and kissing was of a sexual nature, but merely that it was non-consensual, intentional, or reckless.


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